On the one hand, the tech industry is awash in patent trolls, companies that own generally spurious patents for technologies they didn't really invent, which exist solely to sue other companies into licensing said technologies. On the other, we have tech companies that have patents for technologies that they did, in fact, invent (or at least purchase legitimately) and, as important, use in actual products. These companies, too, must sue others to protect their patents, but for far more legitimate reasons.

Google is upset about the latter kind of company, and it's citing two heavy-hitters, Apple and Microsoft, as example of companies that own patents and are using the legal system to prevent other companies from infringing on their protected technologies. More specifically, these companies are using their patents in a war against Google's Android OS, which is of course the dominant market leader. In poor Google's world, these companies are out for no good.

But what's the argument here, exactly?

According to a blog post that voices this complaint, and I'm using its exact wording here, "Android is on fire. More than 550,000 Android devices are activated every day, through a network of 39 manufacturers and 231 carriers."

Oh. Great. So there's no cause for alarm, right? I mean, Android is already running roughshod over the rest of the mobile world, including industry darling Apple's iPhone. Right?

Wrong.

"Android's success has yielded ... a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents," Google Senior Vice President and Chief Legal Officer David Drummond writes in the post.

Ah, bogus patents. I'm curious how that was determined. Let's read on. Surely, this will be explained. After all, it's an incredible charge to make publicly. There must be proof and some public explanation of why that word was used.

"They're doing this by banding together to acquire Novell's old patents and Nortel's old patents (the 'Rockstar' group including Microsoft and Apple), to make sure Google didn't get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it."

Actually, using patents in this way is a legitimate business endeavor with no proof of "bogusness." But I am curious, if Google had in fact won these patents for itself, would that have made them "non-bogus"?

I'm sure he'll explain the bogus comment. Let's keep reading.

"A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a 'tax' for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation. This anti-competitive strategy is also escalating the cost of patents way beyond what theyre really worth."

Again, no explanation of the bogus claim is made, though he does repeat the charge ("largely questionable patent claims"), place the word tax in quotes, suggesting that these companies use this term themselves, and then add a more general "anti-competitive" charge. The thing is, this activity is the very notion of competitiveness. Patents are designed to protect intellectual property, which are a competitive advantage. In many ways, Apple, Microsoft, and whoever else owns these patents actually protecting them is what makes this activity competitive. Google can't just use protected technologies owned by other companies without paying for them. That is competition.

"The winning $4.5 billion for Nortels patent portfolio was nearly five times larger than the pre-auction estimate of $1 billion. Fortunately, the law frowns on the accumulation of dubious patents for anti-competitive means  which means these deals are likely to draw regulatory scrutiny, and this patent bubble will pop."

Laws do not "frown" on anything; something is either legal or illegal. And again the charge of "bogusness" is raised ... without any explanation of why they might in fact be illegitimate. And then there's some lovely speculation about regulatory scrutiny and what the resulting action might be.

But let's say Apple and Microsoft overpayed for the patents in order to attack Google. Let's say this is in fact anti-competitive behavior. How does that makes the patents bogus? It doesn't.

"We're determined to preserve Android as a competitive choice for consumers, by stopping those who are trying to strangle it."

Wait for it, this is going to be good.

"We're looking intensely at a number of ways to do that ... We're looking at other ways to reduce the anti-competitive threats against Android by strengthening our own patent portfolio. Unless we act, consumers could face rising costs for Android devices  and fewer choices for their next phone."

So let's recap.

Google believes that Microsoft's and Apple's purchases of patents are anticompetitive, and that the mobile patents they own are bogus. To combat this, Google is going to acquire its own (bogus?) patents.

And I'd also point out that Google licenses Android for free. So by raising the price of Android by imposing licensing fees on technologies Android is in fact using, Apple, Microsoft, and others are arguably simply leveling the playing field and taking away an artificial Android advantage, forcing the OS to compete more fairly. Arguably, by "dumping" Android in the market at no cost, Google--which has unlimited cash and can afford to do such a thing--is behaving in an anticompetitive fashion. In fact, one could argue that Google is using its dominance in search advertising to unfairly gain entry into another market by giving that new product, Android, away for free. Does this remind you of any famous antitrust case?

And where's the harm to Google here? How can Google, which commands almost double the market share of the next closest competitor in this market and is, in fact, seeing nothing but continued growth, argue that its competitors are acting anti-competitively? (The numbers: Apple activated a bit less than 30 million iOS-based devices--iPhones and iPads--in the past quarter. According to the Google figure cited above, it is activating almost 50 million Android-based devices in the same time period.)

And speaking of harm, isn't Google's Android dumping harming competition? After all, the mobile OS makers it is competing against developed and paid for the technologies they use, and it's reasonable for them to recoup those costs through the sale of their systems. Why is it OK for Google to steal their ideas and then give the resulting product away?

There's no David in this story of Goliaths. But give me a break. Google has simply cast a light on its own dark secrets. It is Google, not Apple and Microsoft, that is behaving badly here.

Pinging you to this thread... similar to the one you pinged me to this morning. This is by Paul Thurrott... and says it MUCH better than that one this morning. I think you might enjoy it... and ping your people here too. Paul Thurrott nails it!

Most airlines generate pilot and flight attendant schedules on a monthly basis. For decades, my wife and I competed on the basis of company seniority for the next month’s “lines of flying” with 80-100 other pilots.

In the “good old days”, this process was done manually (3 x 5 cards, cutting the lines into strips, etc.), and could easily take 6-8 hours to complete, not counting the 5 AM trip to the airport on the day the bids closed. (My wife and I bid to have all our days off together.)

A talented young copilot (he and his wife were software engineers) created a program to do this. It took him over 6 months of constant work to get it debugged and running.

What a great deal - It cost us $100 and ran on my IBM 386. After that, every month, we simply downloaded the company schedules. Then, after we inserted the parameters we wanted, his program gave us the answers - the entire process took less than 20 minutes.

After a year of struggle, and over $20,000 invested, he broke even. He was sued by a do-nothing sharpshooter - the lawyers said “He thought of this first; that means you stole it from him.” The battle raged over the next three years; the end result: Although he finally “won” his case, he lost over $40,000 in legal fees. The slimebag paid nothing - his lawyer had taken the case on a contingency basis. Because of continuing legal threats, the project was finally abandoned. Sad.

The Patent and Trademark office doesn’t do much research looking for prior art before issuing patents. Several years ago they gave Roger Billings a patent on networking. IBM and Xerox had been networking for years before that but PTO ignored that little fact. The courts finally invalidated the patent. Google is likely talking about such patents, and they can probably show prior art when required.

Google is likely talking about such patents, and they can probably show prior art when required.

I think what they are going to find is that the "prior art" had been created and patented by Novell & Nortel and was known to have been patented when Google started using it and that MSFT et al legally acquired the rights to it.

the lawyers said He thought of this first; that means you stole it from him.

Article 1 Section 8.

The Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .

The Congress has gotten so far afield with encroaching on the rights of the states and the people, that it's hard to visualize Congress deciding not doing something that the Constitution explicitly authorizes . . .

Interesting article, I think his best point was at the end when he discussed the anti-competitive nature of google using their search monopoly to gain entry into another market.

I wonder how google would respond if insteaf of releasing windows phone 7, Microsoft took android changed the search provider and then gave it away for free to the OEMs along with protection from IP lawsuits (something google isn’t willing to do).

Personally I’m glad they didn’t because Android is an awful awful OS for 2011. It reminds me of windows mobile 6 with SPB mobile shell. But if they did it would google complain that Microsoft stole their technology? So I guess they do believe in patents, just the ones they hold. Google is looking a lot like the old Microsoft and is quickly becoming the most hated IT company on the planet.

12
posted on 08/06/2011 11:29:16 AM PDT
by for-q-clinton
(If at first you don't succeed keep on sucking until you do succeed)

The issue you describe is the reason for patents. The guy that wrote the software should should have gotten a patent. But the bigger issue is why we need tort reform in this nation. We should go to a loser pay system and make it harder to sue people. This guy never would have filed if he was at risk of paying the other guys attorney fees.

13
posted on 08/06/2011 11:35:39 AM PDT
by for-q-clinton
(If at first you don't succeed keep on sucking until you do succeed)

>> This guy never would have filed if he was at risk of paying the other guys attorney fees.

Bingo! That system is in place in the U.K.

I had a wealthy neighbor (high value horses, fancy cars, etc.) who said he “owned a small printing company”. Since my first job after college was in the production department of a New York advertising agency, I initiated shop talk and quickly “hit bottom” with him. I was surprised, and initially said nothing.

Some years later, he approached me regarding setting up a neighborhood wireless system on my 80’ ham radio tower. He offered to finance the whole thing and split the profits with me. Previously, he had made several large verbal commitments within our congregation, but never followed through with the $$s.

I was nervous. I casually said: “OK, I’ll think about it, but first, tell me what you REALLY do.” Turned out that the SOB made a business of suing businesses for “idea infringement”. His was creative and his mind ran a mile a minute.

He kept a BOUND logbook of all his ideas; whenever he came up with something, he’d write it down and date it. He’d frequently have the pages notarized (to be able to prove in court the date of his idea). Then, every month or so, he’d pass copies of the pages off to his lawyers and they’d go fishing for someone to sue. He never did sh*t with any of the ideas. I never spoke to him again.

His poor wife had a slow death (cancer?); he had kept a honey on the side for years, dumped her care on his grown daughter, and was married to the slut within months after she died. Nice guy.

Wow that guy sounds a lot like me, but I had no idea I could sue people for my ideas. I have a million great ideas, but don’t have the stones to risk my future on trying to make even more money. But I’ve seen a couple ideas take off years later from someone else—even seen them on those infomercials or as seen on TV things.

I have two ideas I know will take off, but don’t have the ambition to make them into products. I think I’ll just document them and then sue someone instead /just kidding.

15
posted on 08/06/2011 12:47:51 PM PDT
by for-q-clinton
(If at first you don't succeed keep on sucking until you do succeed)

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